MR. TUNDE FOLARIN & ANOR v. COMRADE SAM A. IDOWU & ORS (2013)

MR. TUNDE FOLARIN & ANOR v. COMRADE SAM A. IDOWU & ORS

(2013)LCN/6553(CA)

RATIO

NECESSITY FOR DISCLOSURE OF A CAUSE OF ACTION ON A WRIT OF SUMMONS AND STATEMENT OF CLAIM

It is an elementary principle of law that it is only where the endorsement on a Writ of Summons and Statement of Claim discloses a cause of action that the Court can exercise jurisdiction over a case -see Uttih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166, where the supreme court per Karibi-Whyte, JSC, stated –

“It is a well settled principle that a matter cannot be heard on its merits unless there is a cause of action, and the Plaintiff has the right to bring the action”. Per AMINA A. AUGIE, J.C.A.

CONDITION TO ESTABLISH AN ABUSE OF COURT PROCESS

Now, an abuse of Court Process may occur when a party improperly uses the judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. For instance, multiplicity of actions which involves the same parties and the same subject matter will amount to an abuse of the process of the court and a court has the duty to stop such abuse. See IKINE VS. EDJERODE (2001) 12 SC (PT 2) 94; C.B.N. vs. AHMED (2001) 5 SC (Pt.2) 146; ARO VS. FABOLUDE (1983) All NLR 67; AGWASIM VS. OJICHIE (2004) 4 SC (PT.2) 160; In SARAK Vs. KOTOJE (1992) 9 NWLR 155. The Supreme Court held per Kabiri Whyte (JSC) that:-

“It is recognized that the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the annoyance and irritation of his opponent, and the efficient and effective administration of justice. This will arise in multiplicity of actions on the same subject matter against the same opponent on the same issue.”

See also OKAFOR vs. A.G. ANAMBRA STATE (1991) 6 NWLR (PT 200) 659 where the Supreme Court in defining what constitutes abuse of court process stated:-

“It is the law that the multiplicity of actions on the same matter may constitute abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter. The court has a duty in such situation to interfere to stop an abuse of its process.” Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

WORDS AND PHRASES: CAUSE OF ACTION

It is trite that a cause of action is a factual situation which a plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being enforced against a defendant. See AKANDE VS ADISA (2004) ALL FWLR (PT 236) 413; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AGBANELO VS UNION BANK OF NIGERIA LTD (2000) 4 SC (PT 1) 243 and ADESOKAN VS ADEGOROLU (1997) 3 NWLR (PT.493) 61. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Lagos Division of the National Industrial Court delivered by T. Agbadu Fishim on the 24th May 2012 in suit No.NICN/LA /129/2011 wherein the defendants motion on notice for striking out the substantive suit was dismissed.

The claimants (now Respondents) had filed a suit on 12-10-12 against the defendants, (now appellants) at the National Industrial Court (hereinafter referred to as the Lower Court) claiming the following reliefs

(1) A declaration that collection of check-off dues from the Salary Of Secondary School Teachers in Ogun State by the 3rd and 4th defendants’ Association which is not a registered Trade Union through the 1st defendant is illegal and unlawful.

(2) An order compelling the 1st defendant to henceforth deduct the check-off duties from the salaries of Secondary School Teachers in Ogun State and pay same to the 3rd claimant as provided for in ,Section 5(g) of the Labour Act Cap LI Vol.8 Laws of the Federation of Nigeria 2004.

(3) An order compelling the 3rd and 4th Respondents to calculate and refund the amount collected as check-off dues from salaries of secondary school Teachers in Ogun State from September 2010 until judgment is delivered in this suit to the 3rd Claimant.

(4) An order of perpetual injunction restraining the 3rd and 4th defendants themselves, privies or their association from parading themselves as a Registered Trade Union.

(5) An order of perpetual injunction restraining the 1st Respondent from further remitting the check-off dues deducted from salaries of secondary school Teachers in Ogun State to 3rd and 4th defendants or their association.

Also filed along with the suit is the statement of facts and documents to be relied on, a list of witness and a motion on notice for interlocutory injunction.

The 3rd and 4th defendants reacted by filing a motion on notice dated 5-12-2011 but filed on 8-2011 wherein they prayed the court for the following orders:-

(1) AN ORDER striking out the entire suit of the plaintiff as same is an abuse of the process of this Honourable court.

(2) AN ORDER dismissing this suit on the grounds that the Plaintiffs lacks locus standi to institute this action.

(3) AN ORDER striking out the names of the 1st, and 2nd, Defendants/Respondents on the ground that the action against them is statute barred.

(4) AN ORDER striking out the entire suit against 3rd and 4th Defendants/Applicants on the ground that the action against them is an abuse of court process as similar suit in respect of the subject matter against 3rd and 4th Defendants’ Union/Association is pending at the Federal High Court Abuja Division and court of Appeal Abuja Division respectively which suit was filed by the chambers representing the Plaintiffs before this court.

(5) AN ORDER striking out the entire suit on the ground that this Honourable court locks jurisdiction to entertain, hear and determine this suit as the subject matter in this suit has been settled out of court between the 3rd and 4th Defendants/Applicants’ Union/Association and the 1st and 2nd Plaintiffs Union represented by the 3rd Plaintiff/Respondent when the same cause of action was pending before Ogun State High court in suit No.HSC/59/03.

And for such further order(s) as this Honourable court may deem fit to make in the circumstances of this case.

The said motion on notice was supported with a 43 paragraph affidavit deposed to by one comrade Israel Oyedele, and attached to the said affidavit are Exhibits D1 to D10.

The 1st and second defendants did not file any process by way of counter affidavit but rather agreed with the application.

The claimants reacted by filing a counter affidavit of 8 paragraphs deposed to by one Alhaji Moshood B. Disu.

Written addresses were subsequently order, filed and exchanged. In a Ruling delivered on 24-5-2OL2 the learned trial judge dismissed the application and ordered that the matter proceed for hearing.

The appellant herein felt aggrieved with the said ruling and consequently filed Notice of appeal dated 12-11-2012. It contains six grounds of appeal which reads as follows:-

GROUND 1

1. The learned trial judge erred in law when he failed to pronounce on the issue of jurisdiction to wit: Limitation of action against the 1st and 2nd Respondents on the ground that evidence had not been led in the suit.

PARTICULARS OF ERRORS

o. To determine whether an action is statute barred or not it is the Statement of Claim that has to be looked at and not evidence of the parties.

b. There is a Statement of Claim on record through which the learned trial judge can make his pronouncement but ignored same.

c. The cause of action arose in September 2010 but the suit was filed in October, 2011 a well over period of one year from the time cause of action arose which the trial court ignored.

GROUND 2

The learned trial judge erred in low when he failed to pronounce on the jurisdiction of the court to entertain this suit in view of the documentary evidence to wit: Terms of settlement between the Respondent and the Appellants over the subject matter of the suit.

PARTICULARS OF ERROR

a. The materials upon which the learned trial judge can pronounce on the issue are clearly made available to him to wit: Certified true copy of the Terms of Settlement in suit No.HCJ/59/03.

b. The Respondents never denied the existence of the said Terms of Settlement entered into between them and the Appellants and filed at the High Court of Justice, Ijebu-Ode, Ogun State.

GROUND 3

The learned trial judge erred in law when he failed to pronounce on the competence of the suit filed by the

Respondent despite the documentary evidence and unchallenged affidavit evidence of the Appellants placed for his due consideration.

PARTICULARS OF ERROR

a. The Respondents conceded the fact that the matter between them and the Appellants were settled vide a terms of settlement filed before Ogun State High Court and also forwarded to Ogun State Government pursuant to the terms of Settlement.

b. There was no appeal against the Terms of settlement by the Respondents and the 1st to 3rd Respondents admitted collecting money put in custody of the Chief registrar of the High court of Abeokuta pursuant to the terms of settlement.

c. The law does not envisage the case the 1st to 3rd Respondents in view of the unchallenged Terms of settlement by the parties in respect of the same subject matter which the Lower Court ignored.

d. The 4th and 5th Respondents were equally parties in the suit filed of High court of Justice, Ijebu-ode which case was settled and terms of settlement filed.

GROUND 4

The learned trial judge, erred in law when he failed to give due consideration to the decision of the case of SHIBKHAU v. ZAMFARA STATE (2010) 10 NWLR (PT.1202) 312 @ 340 which authority was drawn to his attention.

PARTICULARS OF ERRORS

a.No consideration was given to the decision of the case of SHIBKHAU v. ZAMFARA STATE cited of before the learned trial judge in his ruling.

b. There is unchallenged fact to the effect that the Appellant have withdrawn their membership from the 1st to 3rd Respondents which culminated in the Terms of settlement between the Appellants and the Respondents.

c. The decision of the court in the case of SHIBKHAU v. ZAMFARA STATE (SUPRA) support the case of the Appellants having withdrawn from the Respondents, the later have no locus standi in the subject matter.

GROUND 5

The learned trial judge erred in law when he ruled that the Respondents have locus standi to sue the Respondents in respect of the subject matter.

PARTICULARS OF ERRORS

a. The Respondents conceded the fact that the Appellants had earlier sued them in respect of the subject matter and the parties filed terms of Settlement wherein the Respondents agreed never to do anything contrary to the Terms of Settlement.

b. The said terms of settlement drawn to the attention of the Lower Court by the Appellant and which crucial fact the Respondent never challenged.

c. The Respondents benefited from the Terms of settlement by collecting millions of naira in pursuant of the said terms of settlement.

d. The law does not allow parties to approbate and reprobate or blow hot and cold at the same time over the same subject matter which the trial court ignored.

e. The Secondary School Teachers that had earlier withdrawn their membership from the Respondents and who owns the money being given to the Appellants were never made parties to the suit.

GROUND 8

The learned trial judge erred in law when he held that the case of the Respondent is not in any way related to the case which the Respondents filed at the Federal High Court Abuja now pending at the Court of Appeal, Abuja.

PARTICULARS OF ERRORS

a. The 1st to 3rd Respondents through their parent body NUT filed a suit at the Federal High Court Abuja now pending at the Court of Appeal, and one of the reliefs they are claiming is to stop the Appellants from parading themselves as a Trade Union while one of the reliefs that the 1st to 3rd Respondents are claiming at the Lower Court is also seeking an order restraining the Appellant from parading themselves as a trade union which crucial fact the learned trial judge ignored.

b. The case at the Federal High court now pending at the Court of Appeal, Abuja is first in time and the Industrial Court cannot be seen to be sharing the Res with the Court of Appeal which is an Appellate court which crucial fact was pointed to the learned trial judge.

c. The same chambers that filed the suit at the National Industrial court is also the chambers that filed the suit at the Federal High court Abuja now pending at the Court of Appeal Abuja which crucial fact was pointed to the court but which fact the learned trial judge ignored.

Parties thereafter filed and exchanged their briefs of argument.

The appellants brief of argument dated and filed on 7-1-2013 was settled by Olayiwola Afolabi Esq. The 1st to 3rd Respondents brief dated and filed on 21-2-2013 was settled by Bukola Omotoso Esq. while that of the 4th and 5th Respondents dated and filed on 2o-2-13 was settled by J. O. Mafe, Assistant Chief State Counsel, Ministry of Justice, Ogun State.

There is also the appellants’ reply brief to that of the 1st to 3rd Respondents. It is dated and filed on 7-3-2013.

At the hearing of the appeal on 9-10-2013 the parties duty adopted and relied on their respective briefs of argument.

In the appellants brief, four issues were formulated for determination as follows:-

a. whether the Lower Court was right when he failed to pronounce on the issue of jurisdiction, to wit:- limitation of the suit of the 1st to 3rd Respondents as regards the fourth and fifth Respondents who were sued as co-defendants in the suit of the Lower Court despite the materials placed before the learned trial judge to wit, statement of facts of the 1st to 3rd Respondents who were the claimants at the Lower Court from Ground One.

b. Having regard to the unchallenged affidavit evidence of the salient fact that the parties had earlier signed the terms of settlement and the crucial unchallenged fact that the Nigeria union of Teachers collected money pursuant to that Terms of Settlement, whether the claim of the 1st to 3rd Respondents can still be maintained before the Lower Court and whether the Lower Court was right not to pronounce on same from ground three.

c. Having regard to the unchallenged fact that there is a pending case now at the court of Appeal filed by the same Nigeria union of Teachers as the Federal High Court, Abuja wherein Nigeria union of Teachers is seeking some of the principal reliefs which the 1st to 3rd Respondents are seeking at the Lower Court, whether the two courts to wit: Court of Appeal Abuja and National Industrial Court Lagos can continue to share the same rex from ground six.

d. Having regard to the fact that the 1st to 3rd Respondents admitted the existence of the terms of settlement between them and the Appellants which agreement gives the Appellants right to collect check off dues from their members, whether the 1st to 3rd Respondents still have locus to file the suit against the Appellants in respect of the same check off dues from grounds four and five.

For the 1st to 3rd Respondents, four issues were also distilled for determination as follows:-

(1) Whether the case of 1st – 3rd Respondents before the Lower Court as statute barred.

(2) Whether the 1st – 3rd Respondents have the locus to file the suit against the Appellants’ Association that is not Registered Trade Union in respect of the check-off dues from Secondary School Teachers in Ogun State.

(3) Whether the subject matters and reliefs sought by 1st to 3rd Respondents in the case before the Lower Court are the same with the subject matter and reliefs sought in the case before the Federal High Court Abuja and the Court of Appeal Abuja

(4) Whether the purported terms of settlement between the appellants and 1st to 3rd Respondents can empower the Appellants Association that is not a Registered Trade Union to collect check-off due.

The 4th and 5th Respondents on the other hand adopted all the issues as formulated in the appellants brief of argument.

The issues raised by the appellants and 1st to 3rd Respondents are not dissimilar. I am however minded to adopt the four issues as raised in the appellants’ brief of argument in the consideration of this appeal.

ISSUE 1

Dwelling on this issue, learned counsel for the appellant submitted that a cause of action is said to abate or is statute barred when no proceedings in respect thereof can be initiated because the time specified by the limitation law has expired. He referred to the case of EBOIGBE VS NNPC (1994) NWLR (PT 347) 849 ratios 3 and 10. He added that in order to determine whether an action is statute barred, the documents to be considered are the writ of summons and the statement of claim citing IBEKWE vs IMO STATE EDUCATTON MANAGEMENT BOARD (2009) 3 NWLR (PT.1134) 234 at 257 and IBRAHIM VS JSC KADUNA STATE (1998) 16 NWLR (PT.584) 1.

Learned counsel further submitted that a legal right to enforce an action is not a perpetual right but a right limited by statute, and if the plaintiff action is statute barred, it affects the legal competence of the jurisdiction of the court to entertain the claim. He relied on the following authorities:- DAUDU vs UNIVERSITY OF AGRICULTURE MAKURDI (2002) WRN 99; EBOIGBE VS. NNPC (1994) 5 NWLR (PT.347) 649, IBRAHIM VS. JSC KADUNA STATE supra and AJAYI VS ADEBIYI (2002) 11 NWLR (PT.1310) 137 at 169-170.

Learned counsel referred to page 4 of the record to contend that the 1st to 3rd Respondents agreed that the cause of action arose in September 2010 having so averred in paragraph 10 of their statement of facts.

He further referred to Section 2 of the public officers protection Law of Ogun state to submit that the period allowed by law to bring an action against a Public officer is three months, therefore he argues, the Lower Court was not justified in refusing to consider the issue of limitation of the action filed by 1st to 3rd Respondents and by stating that he would wait till the end of the trial before treating the issue. Learned counsel citing in support the case of AJAYI vs ADENIYI supra at 202 and CRUTECH vs OBETEN (2012) ALL FWLR (PT.641) 1567. He then urge this court to resolve the issue in the appellants favour. Responding on this issue 1 learned counsel for the 1st to 3rd Respondents submitted that while it is not in doubt that the 4th and 5th Respondents are public officers protected by the aforementioned law, it is however trite that limitation of time for a continuous damage or injury is three months, next after the ceasing thereof.

He added that deduction of check-off dues and payment of same to the appellants Association started in September 2010, which as the subject matter of this suit is a continuous damage up till date as against the 3rd Respondent who is a trade union that is entitled to collect check off dues from Secondary and Primary School Teachers in Ogun State. Therefore, he argues, limitation of time under the Public Officers Protection Law of Ogun State will only apply three months after the 4th Respondent might have stopped payment of check off dues to the appellants. He referred to the cases of N.A.U. AWKA vs NWEKE (2008) 1 NWLR (PT 1069) 504 and ALIYAYE vs PERMANENT SECRETARY, BORNO STATE (1990) 1 NWLR (PT.129) 728 at 738, and ANOZIE vs AG FEDERAL REPUBLIC OF NIGERIA (2008) 10 NWLR (PT.1095) 278.

Learned counsel then concluded that limitation of time provided in Section 2(a) of the Public Officers Protection Law will only apply three months after the payment of check off dues to the Appellants’ Association by the 4th Respondent might have stopped.

As earlier stated, the 4th and 5th Respondents also filed a brief of argument wherein they adopted the issues formulated in the appellants’ brief of argument. Their submissions under the four issues were totally in support of the case of the appellant. In other words, though they are the 4th and 5th Respondents in the appeal, their conclusion is that the appeal should be allowed.

However, the standard principle of law in this regard is that a Respondent in an appeal has a duty to support rather than criticize the judgment of the Lower Court. A Respondent who has no cross appeal cannot be found to complain about the decision of the court. See NIGERIAN BANK FOR COMMERCE AND INDUSTRY VS INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT.250) and FEDERAL MORTGAGE FINANCE LTD VS EKPO (2005) ALL FWLR (PT.248)

In the instant case the 4th and 5th Respondent did not file any cross appeal and rather than support the Ruling appeal against or at best decline from filing any brief, opted to challenge it. This cannot be allowed and the consequence is that the brief of argument filed by the 4th and 5th Respondent shall be and is hereby discountenanced.

The submissions of the appellants in their reply brief will be addressed as the need arises. Now the portion of the Ruling of the Lower Court which constitutes ground one in the Notice of Appeal and form the basis for the appellants’ issue 1 under consideration reads thus:-

“Having considered four issues raised by the parties in arguing the preliminary objection, I shall address only two of the issues in resolving this preliminary objection. The two issues I will address are the issues of locus standi and the issue of whether or not this suit in its present form is an abuse of court process. The other two issues of limitation as regard Public Officers’ Protection and the issue of whether there was an out of court settlement of this matter in the past are issues that cannot properly be determined at this stage of the proceedings.

I am of the considered view that these are issues that can properly be determined at the trial when evidence will be led to establish same. I therefore decline to make any pronouncement concerning the issues at this stage of the proceedings.”

I am of the considered view that these are issues that can properly be determined at the trial when evidence will be led to establish same. I therefore decline the issues at this stage of the proceedings.”

(Underling for emphasis)

In WOHEREM VS EMERUWA (2004) ALL FWLR (PT.221) 1570. The Supreme Court at page 1581 held per Iguh JSC that:-

“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached”.

However in certain situations, the period for the enforcement of such right of action expires or ends on the date or time frame that the statute of limitation proclaims that no such legal action or proceedings may lawfully be commenced by an aggrieved party. Consequently, an action instituted after the expiration of the period prescribed by law is said to be Statute Barred. This is because time begins to run for the purpose of the limitation law, from the date the cause of action accrues. See SPDC LTD VS SARAH (1995) 3 NWLR (PT 382) 148; ASABORO VS PAN OCEAN OIL (NIG) (2006) 4 NWLR (PT.971) 595 and OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) 17.

In order to ascertain the time when the cause of action accrued, for the purpose of the Limitation Law, the courts only looks at the writ of summons and the statement of claim which ordinarily ought to contain averments of facts as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed.

In the instant case, the writ: was filed on 12-10-2011. In paragraph 8 of their statement of facts, the 1st to 3rd Respondents averred as follows:-

8 “That the Academic Staff Union of Secondary Schools, Ogun State has been collecting check off dues from salaries of Secondary Schools in Ogun State through the 1st defendant since September 2010”.

Now there is no dispute as to the fact that the cause of action in this suit first arose in September 2010, as this was clearly agreed to by the 1st to 3rd Respondents in their brief of argument.

There is also no dispute as regards when this suit was filed in the Lower Court.

There is equally no disputing the fact that the 4th and 5th Respondents are Public Officers within the meaning of the Public Officers Protection Law of Ogun State. The main grouse of the appellants is the refusal of the Lower Court to address the issue of the limitation law but rather held that it will only be addressed at the trial when evidence will be led to establish same.

It is well established now that when a party raises the defence that an action is statute barred he is challenging the competence of the suit and the jurisdiction of the court to entertain it. Thus in ADEKOYA vs FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT.1099) 539. The Supreme Court per Tabai JSC held that:-

“A plea by a defendant in any given case that an action is statute barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim’.

See also AMUSAN VS OBIDEYI (2005) 14 NWLR (PT.945) 922, JFS INVESTMENT LTD VS BRAWAL LINE LTD (2010) 18 NWLR (PT.1225) 495.

In KOLO VS FBN PLC (2003) 3 NWLR (PT.806) 216. It was held that the statement of claim is recognized as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued.

Similarly, in OLAGUNJU VS POWER HOLDING COMPANY OF NIGERIA PLC (2011) LPELR (2556) SC. The same apex court per Onnoghen JSC held thus at page 14:-

“It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the court concerned on points of law because where an action is found to be statute barred it means that the court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with on empty unenforceable cause of action.”

In the instant case and at least from the records, there is nothing to show that the learned trial judge complied with the age long legal principle of perusing the writ of summon and statement of claim for the purpose of determining when the cause of action accrued and deciding whether the suit is caught by the statute of limitation. The learned trial judge opted to suspend the determination of the competence of the action (by virtue of the defence of statute of limitation) and as such the court’s jurisdiction to entertain the suit and decided it would be more convenient for him to do so during trial when evidence must have been led.

This indeed is not the proper approach to resolving the issue whether an action is statute barred. It ought to be resolved by a perusal of the writ of summons and statement of facts as filed in the court.

Now I had earlier in this ruling reproduced the provisions of Section 2(a) of the Public Officers Protection Law of Ogun State. I had also earlier stated that there is no dispute as to the fact that the cause of action originally accrued in September 2010 as averred in the 1st-3rd Respondents statement of fact filed in the Lower Court. But for the appellants, the action having been filed in October 2011 as against the three months period as provided for by the law, the 1st to 3rd Respondents are not in contention over the fact that the collection of the check off dues commenced in September 2010 but the said collection by the appellants have been a continuous act in which case section 2(a) of the aforesaid law will be applicable, three months after the payment of the check-off dues to the Appellants’ Association might have been stopped by the 4th Respondent.

I am inclined to reproduce the said provision again, it reads:-

2(a) “Where any action, prosecution or other proceeding is commenced against any person for any set done in pursuance or execution or intended execution of any law or of any public duty or authority, or the respect of any alleged act or neglect or default in the execution of any such low, duty or authority, the following provision shall have effect:-

The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the fact, neglect or default complained of or in case of a continuance damage or injury, within three months next after the ceasing thereof .

The question now is whether the act of payment of check-off dues by the 4th Respondent to the appellants since September 2010 can be deemed a case of continuous damage or injury as to exempt the 1st to 4th Respondents from the three months limitation period.

The case of A.G. RIVERS STATE VS A.G. BAYELSA STATE supra seem to provide an answer to it.

The Supreme Court at page 9 of the report held thus:-

The law of limitation of action recognizes some exceptions. Thus, where there has been continuance of the damage, a fresh cause of action arises from time to time as often as the damage is cause. BATTISHILL vs REED (1956) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs without any fresh working by he owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action”.

Their lordships had in the said judgment referred to their earlier decision in AREMO II Vs ADEKANYE (2004) 13 NWLR (PT.891) 572 where at page 593. It was held that:-

“Legal principles are not always inflexible sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of damage, a fresh cause of action arises from time to time, as often as the damage is caused”.

In the instant case, the act of payment of check-off dues by the 4th Respondent to the appellants was agreed to have commenced in September 2010 and this continued till the action was instituted in October 2011. This no doubt is a continuance of damage wherein a cause of action arises from time to time until the 1st to 3rd Respondents decided to bring the action even when the damage or injury has not ceased. In the circumstance, I am convinced and I so hold that the suit is not caught by the provisions of Section 2(a) of the Public Officers Protection Law of Ogun State and is consequently not Statute Barred.

Issued 1 is therefore resolved against the appellant.

I will now go to issue 3 which deals with whether the Court of Appeal Abuja and National Industrial Court, Lagos can continue to share the same REX.

ISSUE 3

Herein, the learned counsel for the appellant submitted that where a party files an action to obtain a relief in respect of a particular subject matter similar to another one previously instituted, it will amount to abuse of court process. He cited NNANA VS. NWANEBE (1991) 2 NWLR (PT.172) 181.

He added that the previous action filed by the Nigeria Union of Teacher (NUT) at Abuja has not been concluded before this suit was filed by the same NUT at the Lower Court against the Academic Staff Union of Secondary Schools which is also a party in the suit at the Federal High Court, Abuja. Learned counsel referred to reliefs 5 and 7 of their claim in the Federal High Court, Abuja which are similar to Reliefs (a-a) of paragraph 14 of the 1st to 3rd Respondents claim at pages 4 and 5 of the record. He then contended that since the main issue as to whether the Academic Staff Union of Secondary Schools is a registered Trade Union or not is the subject matter of the case before the Court of Appeal, Abuja, the Lower Court cannot then share the same Rex together with it, just as the same relief cannot be sought at both the Federal High Court and the Lower Court.

He added that the law does not permit the proliferation of cases or turning the courts into a Supermarket to see where the biggest bargain lies.

For the 1st to 3rd Respondents it was submitted that the subject matters in the two cases under reference are not the same. He referred to the reliefs sought in both the Lower Court and the Federal High Court, Abuja. Learned Counsel further submitted that the subject matter before the Federal High Coutt, Abuja and the Court of Appeal, Abuja relates to the issue of Registration of the Academic Staff Union of Secondary Schools as a Trade Union but the claims of the 1st to 3rd Respondents in the instant case relates to collection of check-off dues by the Appellants, Association. He added that the subject matters in the two suit are not the same a.ncl urge this court to so hold.

See also OKAFOR vs. A.G. ANAMBRA STATE (1991) 6 NWLR (PT 200) 659 where the Supreme Court in defining what constitutes abuse of court process stated:-

In the instant case, I have carefully perused the reliefs sought by the NUT in their suit before the Federal High Court which are eight in number as shown at page 59 to 60 of the Record.

I compared them with the five reliefs sought by the 1st to 3rd Respondents in the Lower Court and I find that apart from reliefs (4) which reads thus:

AN ORDER of perpetual injunction retraining the 3rd and 4th defendants themselves, privies or their Association from parading themselves as a Registered trade union.”

The other reliefs are poles apart from those being sought in the Federal High Court which mainly deals with a declaration that the 2nd defendant therein (The Registrar of Trade Union) has no vires to register as a trade union the Academic Staff Union of Secondary School.

The relief being sought by the 1st to 3rd Respondent in the Lower Court relate mainly to the payment and collection of check off dues. I therefore agree with the learned counsel for the 1st to 3rd Respondents that the subject matter of litigation are not the same.

What is more, it is shown glaringly that the parties in the two suit are not also the same. In the suit in the Lower Court the parties reads thus:-

IN THE NATIONAL INDUSTRIAL COURT

HOLDEN AT LAGOS

SUIT NO. NIC/LA/129/2

BETWEEN:

1. COMRADE SAM A. IDWO

(State Chairman, Nigeria Union of Teachers, Ogun State wing)

2. MR. TITUS OLU OGUATAYO

(Acting State Secretary, Nigeria Union of Teachers, Ogun State Wing)

3. NIGERIA UNION OF TEACHERS, OGUN STATE WING

(CLAIMANTS)

AND

1. TEACHING SERVICE COMMISSION, OGUN STATE

2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE

3. MR. TUNDE FOLARIN

(President, Academic Staff Union of Secondary Schools, Ogun State)

4. BOLA BADEJO

(Secretary, Academic Staff Union of Secondary Schools, Ogun State)

(For themselves and on behalf of Academic Staff Union of Secondary Schools, Ogun State)

(DEFENDANTS)

On the other hand the parties in the suit at the Federal High Court are as follows:-

IN THE FEDERAL HIGH COURT

IN THE ABUJA JUDICIAL DIVISION

HOTDEN AT ABUJA

Suit No: FHC/L/ABJ/CS/310/08

BETWEEN:

NIGERIA UNION OF TEACHERS – (PLAINTIFF)

AND

1.HON. MINISTER OF EMPLOYMENT,

LABOUR AND PRODUCTIVITY –

2. REGISTRAR OF TRADE UNIONS –

3. CHARLES O. FALUYI –

4. OLUSOLA ADOJUTELEGAN – (DEFENDANTS)

For themselves and on behalf of the association referred to as Academic Staff Union of Secondary Schools Nigeria (ASUSS): (Formerly Conference of Secondary School Tutors Nig. COST)

(DEFENDANTS)

From the above revelations it is not in doubt that the parties in the two suits are not the same, neither is the subject matter of litigation. To my mind, therefore no abuse of the process of the court is disclosed and I so hold.

Accordingly, issue 3 is resolved against the appellant.

ISSUE 2

Herein learned counsel for the appellants submitted that, the law is clear to the effect that where parties, have chosen to regulate their position by a document, they cannot be allowed to withdraw from it and cannot plead against if or adduce evidence against it. He cited the case of BASIC & ORS. VS. HUNDER 14 LRCN 559 at 570 and EKITI STATE VS. A.G. ONDO STATE (2001) 9-10 SC 115 at 147.

He added that the courts shall not allow a party to approbate and reprobate at the same time, citing HONDA PLACE LTD VS. GLOBE MOTORS HOLDING (NIG) LTD (2005) 7 SC (PT.111) 182 at 193.

Furthermore, he says, having admitted the fact that they collected money, the court will not allow the 1st – 3rd Respondent to challenge in subtle way, the validity of the compromise agreement entered into with them, relying on the case of OHIWERE VS. OKOSUN (2003)11 NWLR (PT 832) 463.

For the Respondents it was submitted by learned counsel that the 1st to 3rd Respondents cannot clothe the appellants association with the cloak of Trade Union, by settlement, compromise understanding or agreement because there are laid down procedures and criteria to be fulfilled before an association can be registered as a trade union. He referred to Sections 2(1) and 17(a) and (b) of the Trade Union Act as well as paragraph 4 of the agreement between the parties to contend that the latter is inconsistent with the provisions of Section 17(a) and (b) as such it is null and void.

Furthermore, he argues, an association that is not a registered Trade Union cannot collect check-off dues by virtue of the said Section 17 (a) and (b) of the Trade Unions Act. Learned Counsel then concluded that paragraph 4 of the said terms of settlement being inconsistent with the aforesaid section, it is rendered null and void and cannot rob the court of its jurisdiction to entertain the suit.

I have carefully considered the submissions made by the parties in their briefs of argument on this issue. I have also read through the relevant laws referred to as well as the Parties Terms of Settlement as contained at pages 3 and 4 of the Record.

It seems germane to reproduce the said terms of settlement and I so do below:

TERMS OF SETTLEMENT

Whereas the counsel of action in this suit is the memberships of the parties, the deduction of union dues and autonomy of the unions.

Whereas series of meetings and discussions were held between the plaintiff and defendants and well meaning people who are stakeholders in the Education and Labour sectors as q result of which the parties came to a compromise and agreed to peaceful settlement of all issues between the parties.

1. The Academic Staff Union of Secondary Schools (ASUSS) as represented by the plaintiffs and the Nigeria Union of Teachers (NUT) as represented by the 1st and 2nd Defendants in this suit shall co-exist.

2. A party shall withdraw all pending cases and it is mutually agreed that the terms of settlement filed in this case shall form the judgment of the court.

3. All money in the custody of the court placed in on interest yielding account by the Chief Registrar of the High Court made by his Lordship Hon. Justice M. A. Dipeolu on the 15th July, 2004 shall the shared among the parties (Union i.e. ASUSS and NUT) on the basis of 40/60. ASUSS shall take 40% while NUT shall take 60%.

4. It is mutually agreed that both NUT and ASUSS will continue to enjoy deduction of Union Dues and Levies from their members for them to operate.

5. The arrangement made under this term of settlement shall take immediate effect from the date of judgment based on this term of settlement.

6. All the parties agreed to bear the cost of litigation in all suits. The parties hereby jointly and severally agreed that any party who does: anything contrary to this term shall be made to face the legal actions for disobedience to the law.

The said Terms of Settlement between the parties was brought to the notice of the High Court of Ogun State at its sitting on 6 – 8 – 2009 and upon the calling of the appellants case as Claimant in suit No.HCJ/59/2003, the proceedings went as follows:-

“HA/59/2003 Mr. B. O. Folarin & Ors. Vs. Mr. Tola Onafuye & Ors.

1st & 2nd Claimants present; 3rd defendant represents by Alhaji M. B. Disu Deputy Chairman.

E. O. Afolabi appears for the Claimants with him Adesina Adeyemo appears for 1st – 3rd defendants.

Mr. Afolabi says parties have settled and he intends to withdraw the suit.

Mr. Adeyemo confirms the position

COURT: Upon that application of the claimants counsel to withdraw this suit after settlement with the defendants and as confirmed by the 1st – 3rd defendants counsel, the case is hereby struck out.

Signed

S. A. Olugbemi

Judge

06/08/2008”

It is however strange that in spite of the provision in paragraph 2 of the Terms of Settlement that it shall be filed and made judgment of the Lower Court, this was not to be and no reason was given for the omission. Though the claimants Suit ended up being struck out on the basis of the application for withdrawal by their counsel and concurrence by counsel for the defendants based on the agreement reached in the Terms of Settlement. This indeed cannot be classified as a consent judgment. In WOLUCHEM vs. WOKOMA (1974) 3 SC 153 at 166 the Supreme Court per Ibekwe JSC explained features of a consent judgment as follows:-

“In order to have a consent judgment, the parties must be ad idem as for as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in court. When the court makes on order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by the leave of the court.”

Also in ADEDEJI VS. OLOSO (2007) 5 NWLR (PT.1026) 123 the Apex court further defines consent judgment thus:-

“A consent judgment means when the parties unequivocally agree to Terms of Settlement which they mutually refer to the court as a basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation. That makes it a consent judgment.”

In the instant case, though the parties mutually agreed to a terms of settlement it was not filed in the court, neither did it form the basis of the court’s judgment, rather the claimants suit was struck out by the court upon application by the parties on the ground that they have settled. In the circumstance it cannot by any stretch of imagination be taken that there was a consent judgment. I have taken pains to address this issue bearing in mind trial part of the transaction involved the Lower Court but unfortunately the proper procedure was not followed even though provision was made for it in paragraph two of the terms of settlement.

Be that as it may, there is established, the fact that there was a dispute between the parties which led to the institution of an action in the High Court of Ogun State. After a meeting of the parties with various stakeholders, a compromise was reached giving rise to the drawing up of a Terms of Settlement duly signed by the parties and their counsel as well as other stakeholders.

The basis for the dispute and subsequent settlement is encapsulated the preamble to the Terms of settlement. It reads;-

“Whereas the cause of action in this suit is the memberships of the parties, the deduction of union dues and autonomy of the unions”.

Having so agreed in the said Terms of Settlement that the two parties to the suit shall be allowed to co-exist and each of them shall continue to enjoy deductions of union dues and levies from their members for them to operate. To my mind it is rather inappropriate and even unconscionable for either of the parties to turn around again and institute an action in the court on the basis of the same subject matter of the former dispute over which there had been a consensus as-idem. Where a party have whole heartedly and voluntarily entered into an agreement (in this case written) he is estopped from reneging from the terms of the said agreement except on grounds of misrepresentation, fraud or mistake. A party shall not be allowed to blow hot and cold in an agreement he had tacitly endorsed and subscribed to, this will be contrary to public policy and as it relates to our jurisprudence it is irrational and unacceptable.

This court made a commendable point on it in the case of EZERIOHA vs. IHEZURO (2009) LPELR (4122) where it held at page 20 thus:-

“Where parties and concerned members of the community elect that a dispute be settled out of court and in furtherance of the same there was mediation and the terms of settlement announced which are acceptable to the parties, the court of justice should not treat such mediation lightly.

Since agreements are meant to be honoured and equity acts in personam the law and equity will act in unison to estop a party to such mediation or out of court settlement who had accepted the terms of settlement from reneging and acting to the contrary of what he had accepted.”

What is more, in the Supreme Court case of AKIO ABEY & ORS VS CHIEF ALHAJI IBRAHIM FUBARA ALEX & ORS (1999) 12 SCNJ 23i4 at 246. It was held inter alia Uwaifo JSC that:-

“The effect of settlement or compromise has also been recorded in Halsbury’s Laws of England supra, para 397. There it is said that where the parties settle or compromise pending proceedings, whether before at or during trial, the settlement or compromise constitutes new and independent agreement between them made for good consideration on the authority of RE Hearn, de Bertodano Vs Hearn [1913] 108 LT. 737 at 738 per Cozens-Hardy MR.

Its effect are;

(1) to put on end to the proceedings for they are thereby spent and exhausted; (2) to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supercede the original cause of action altogether, that is to say, the terms of the settlement or compromise must henceforth regulate the relationship and entitlement of the parties in regard to the subject matter”.

For purposes of clarity and elucidation what can be gleaned from the above decision of the Supreme Court is that parties are entitled to settle or compromise all or any of the questions or disputes between them on any terms and conditions on which they agree even without the approval or sanction of the court or prior reference to the court. Also, such agreement or out-of-court settlement between the parties supercedes the original cause of action altogether and the court has no further jurisdiction in respect of the original cause of action which has been so superceded.

Furthermore, if the terms of the agreement or out-of-court settlement are breached or not complied with, the injured or aggrieved party must seek his remedy based solely on the agreement or out-of-court settlement. In other words, his cause of action can only be founded on that agreement or out-of-court settlement.

In the instant case the action of the 1st to 3rd Respondents is not founded on the breach of any clause of the terms of settlement by the appellants and it was not equally shown that they reneged from the execution of any of the terms of settlement. Rather, they instituted the action to pull back the hand of the clock by asking the court to intervene and annul the terms of settlement which the parties tacitly agreed to and duly endorsed including the withdrawal of all pending suits in the court.

The learned trial judge had in his ruling refused to pronounce on this issue on the ground that it cannot be properly determined at that stage of the proceedings. This to my mind is out of place given the fact that every material necessary for a just resolution of the issue at that stage were available including the Terms of Settlement and the proceedings of the High Court of Ogun State on the 6-8-2009 including the parties affidavit and counter affidavit.

On the whole, I find that the 1st to 3rd Respondent having been parties to the terms of settlement duly executed by them, they cannot in the absence of any fraud or misrepresentation turn around to sue the appellants on the basis of the same issues duly settled and agreed upon by the parties, and as held in ABEY VS ALEX-supra, they can only bring an action where there is a breach of the terms of the agreement so entered. They are consequently estopped from raising any issue duly agreed to in the terms of settlement.

This issue is therefore resolved in favour of the appellants.

On issue No. 4, this is entirely hinged on issue 2 and having resolved it in favour of the appellant I find it unnecessary to embark on a consideration of issue 4. It will definitely boil down to a mere academic exercise which under the present circumstance I do not fancy engaging myself in.

Accordingly, this appeal succeeds in part as it relates to the competence of the suit in the Lower Court. The Ruling of the National Industrial Court delivered on 24/5/12 as to the competency of this suit is hereby set aside.

Suit No NIC/LA/129/2011 is hereby struck out for being incompetent.

Parties to bear their costs.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment delivered by learned brother, Oseji, JCA, and I agree with his reasoning and conclusion. He addressed all the issues canvassed by the parties and I will only emphasize the point he made that the Lower Court ought to have gone through the Writ of Summons and Statement of Claim to determine when the cause of action accrued and whether the suit was caught by the statute of limitation right away after the issue was raised.

“It is a well settled principle that a matter cannot be heard on its merits unless there is a cause of action, and the Plaintiff has the right to bring the action”.

The importance of jurisdiction is why the issue can be raised at any stage of a case, be it at the trial, or on appeal; a Court can even raise the issue suo motu – see Ijebu-Ode L.G. v. Adedeji (1991) 1 NWLR (Pt.166) 136, P. E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt.244) 675 SC, wherein it was held:-

It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce, it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.

Obviously, the Lower Court fell into serious error when it elected to suspend the determination of this all-important issue on the ground that it will be more convenient for it to do so during trial when evidence must have been led.

Thus, I also allow the appeal in part. I abide by the consequential orders in the lead Judgment including that on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the comprehensive judgment just pronounced by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., in which I concur and adopt as my judgment with nothing useful to add.

Appearances

E. O. Afolabi and M. A. KassimFor Appellant

AND

P. R. Omotosho for 1st, 2nd & 3rd Respondent.

J. O. Mafe ACSC Ogun State (MOJ) for the 4th & 5th Respondent.For Respondent